The ACLU backs off defending free speech in favor of promoting social justice

Reason.com, a libertarian site, reports on a leaked memo from the American Civil Liberties Union (ACLU) that makes it pretty clear that the organization wants to ratchet back on defending free speech that is “hate speech”, i.e., speech that goes after “marginalized groups” (see below). You can discount the Reason.com article if you want, but do read the leaked ACLU memo (called “confidential attorney work product) as well as Wendy Kaminer’s Wall Street Journal piece (below) and see for yourself. The pdf of the ACLU’s memo is here.

While the ACLU memo repeatedly assures its readers that the group is not giving up on defending speech considered widely offensive, it’s pretty clear to me, and to former ACLU board member Kaminer, that for the ACLU “free speech has become second among equals.” (Link below, but probably paywalled; judicious inquiry will get you a copy.)

The ACLU’s new guidelines (these are suggestions, not yet policy) suggests that they won’t defend speech that seeks to “engage in or promote violence,” which is okay by me, so long as that promotion of violence is also the kind of “imminent violence” interpreted by the courts as not covered by the First Amendment. They also won’t defend speakers who “seek to carry weapons.” I don’t mind that, either, as that’s close to an incitement of imminent violence, and I don’t accept the courts’ interpretation of the Second Amendment.

No, the problem is this: the ACLU now will weigh “the impact of the proposed speech and the impact of its suppression”, so that now certain kinds of “hate speech” will be demoted on the ACLU’s agenda. From the memo (my emphasis).

The ACLU is committed to the fundamental rights to equality and justice embodied in the Fourteenth Amendment and civil rights laws. See Policies #301-332. We are determined to fight racism in all its forms, whether explicit or implicit, and the deep-rooted institutional biases that continue to reify inequality. We are also firmly committed to fighting bigotry and oppression against other marginalized groups, including women, immigrants, religious groups, LGBT individuals, Native Americans, and people with disabilities. Accordingly, we work to extend the protections embodied in the Bill of Rights to people who have traditionally been denied those rights. And the ACLU understands that speech that denigrates such groups can inflict serious harms and is intended to and often will impede progress toward equality.

Note that they now claim that speech that denigrates groups—including religion!—can “inflict serious harms” and “impede progress toward equality”. Here is the beginning of the slippery slope of “hate speech”. Is criticism of the Vatican, or the excesses of Islam, sufficiently harmful that the ACLU will not defend it? What about religionists who demonstrate for the right of bakers and others not to serve gays?

And remember when the ACLU defended the Klan when it wanted to march through the Jewish suburb of Skokie, Illinois? Well, no more.

We recognize that taking a position on one issue can affect our advocacy in other areas and create particular challenges for staff members engaged in that advocacy. For example, a decision by the ACLU to represent a white supremacist group may well undermine relationships with allies or coalition partners, create distrust with particular communities, necessitate the expenditure of resources to mitigate the impact of those harms, make it more difficult to recruit and retain a diverse staff and board across multiple dimensions, and in some circumstances, directly further an agenda that is antithetical to our mission and values and that may inflict harm on listeners.

In other words, “Free speech, but . . . “.

I’ve written at length why the speech that deserves the most protection and the strongest defense is speech considered most offensive. I am not a Nazi or a racist or a misogynist, but people espousing such views deserve their First Amendment rights, and if you want a long explanation of why, read John Stuart Mill’s On Liberty. Traditionally the ACLU has defended that speech, as a country in which only politically approved speech is allowed is a country in danger. Free speech is to a democracy as oxygen is to an animal. Now, however, they are bowing to the demands of social justice, and the secret memo makes that clear.

This, of course, goes along with the Regressive Left’s new dislike of the First Amendment, since it enables “hate speech”. Remember when Black Lives Matter students at my own alma mater, The College of William & Mary, shut down a talk by the Virginia Executive Director of the ACLU—a talk called “Students and the First Amendment”? That talk was never delivered because of the disruption, and how ironic is that? We are now in a time when all of us who are First Amendment mavens have to fight hard against its erosion by the Left, and that apparently includes by the ACLU. There was a reason, of course, why the memo was confidential, as otherwise there’s nothing embarrassing or secret in it.

As I said, author Wendy Kaminer was a former ACLU board member, and wrote a book describing her disillusionment with the organization. Now she’s even more disillusioned, as am I. I will no longer donate to them nor rejoin as a member until they start defending the groups they used to defend: both progressive groups and “offensive” groups.

Here’s Kaminer’s piece; ask and ye shall receive:

Here are a few quotes from that piece (if you’ve read her engaging books, you’ll know that she is not a right winger):

. . . . free-speech advocates know the ACLU has already lost its zeal for vigorously defending the speech it hates. ACLU leaders previously avoided acknowledging that retreat, however, in the apparent hope of preserving its reputation as the nation’s premier champion of the First Amendment.

But traditional free-speech values do not appeal to the ACLU’s increasingly partisan progressive constituency—especially after the 2017 white-supremacist rally in Charlottesville. The Virginia ACLU affiliate rightly represented the rally’s organizers when the city attempted to deny them a permit to assemble. Responding to intense post-Charlottesville criticism, last year the ACLU reconsidered its obligation to represent white-supremacist protesters.

The 2018 guidelines [in the memo above] claim that “the ACLU is committed to defending speech rights without regard to whether the views expressed are consistent with or opposed to the ACLU’s core values, priorities and goals.” But directly contradicting that assertion, they also cite as a reason to decline taking a free-speech case “the extent to which the speech may assist in advancing the goals of white supremacists or others whose views are contrary to our values.”

In selecting speech cases to defend, the ACLU will now balance the “impact of the proposed speech and the impact of its suppression.” Factors like the potential effect of the speech on “marginalized communities” and even on “the ACLU’s credibility” could militate against taking a case. Fundraising and communications officials helped formulate the new guidelines.

One half of this balancing test is familiar. The “impact of suppressing speech”—the precedents that suppression might establish, the constitutional principles at stake—is a traditional factor in case selection. But, traditionally, the ACLU has not formally weighed the content of speech and its consistency with ACLU values in deciding whether to defend it.

And this (my emphasis):

Tension between competing values isn’t new to the ACLU. Given its decades-old commitment to defending civil rights and liberties, the organization has long navigated conflicts between equality rights and freedoms of religion, speech and association. The guidelines assert that “no civil liberties or civil rights value should automatically be privileged over any other.” But it’s clear that free speech has become second among equals. Where is the comparable set of guidelines explaining when the ACLU should decline to defend gay-rights claims that infringe on religious liberty or women’s-rights cases that infringe on due process?

The speech-case guidelines reflect a demotion of free speech in the ACLU’s hierarchy of values. Their vague references to the “serious harm” to “marginalized” people occasioned by speech can easily include the presumed psychological effects of racist or otherwise hateful speech, which is constitutionally protected but contrary to ACLU values. Faced with perceived conflicts between freedom of speech and “progress toward equality,” the ACLU is likely to choose equality. If the Supreme Court adopted the ACLU’s balancing test, it would greatly expand government power to restrict speech.

Kaminer guesses that the ACLU will no longer defend the First Amendment rights of those it used to defend, like a Klan leader charged with for calling for ‘revengence” against blacks and Jews. And she concludes with this:

All this [the ability to choose cases using varied criteria] is the ACLU’s prerogative. Organizations are entitled to revise their values and missions. But they ought to do so openly. The ACLU leadership had apparently hoped to keep its new guidelines secret, even from ACLU members. They’re contained in an internal document deceptively marked, in all caps, “confidential attorney client work product.” I’m told it was distributed to select ACLU officials and board members, who were instructed not to share it. According to my source, the leadership is now investigating the “leak” of its new case-selection guidelines. President Trump might sympathize.

One wonders why the ACLU took such pains to keep the document secret. Well, read it for yourselves, and you tell me.

ACLU has a right to adopt any policy they want regarding what they chose to defend. And I’m with you, this policy makes them an organization with which I will no longer choose to be affiliated. They seem to be confusing a mission of promoting civil liberties with a mission of promoting social justice. Very different things IMO.

If I was in the US, I would have been a member, and this would put me off them. I would not be burning my membership card until they actually adopted the policy, but it looks that time is coming.

In my opinion, the ACLU has got its logic screwed. They have always made the point that supporting the rights of Nazis to march through a Jewish suburb does NOT mean that they support the beliefs of the fu€k₩it$ (by which I mean the Nazis of course). However, that seems to be the opposite of what the leaked document is saying.

The document says in the first two paragraphs that supporting difference causes has always created a conflict. This is wrong. It does not. This is buying into the arguments of those arguing against them. When they are sticking up for fu€k₩it$, the are not supporting their arguments, they are supporting their right to free speech. It is the principle they are supporting. That is, and always has been, an important distinction.

I agree with Jerry that they shouldn’t be supporting anyone advocating violence in their speech, or carrying weapons, as carrying weapons shows you are prepared to use them. I bet no one at a peaceful sit in during the Civil Rights or Vietnam war protests had a gun in their back pocket. That is not a problem as SCOTUS has ruled that breaching the rule of shouting fire in a crowded theatre is not protected.

When you have conditional free speech, the free part should be removed. It is then conditional speech and sounds more honest even if it also sounds like crap. Now, let me have that conditional newspaper to read my conditional press. No one is offended and no one cares.

Why keep it a secret? Easy: the ACLU will lose all creditability as a champion of individual liberties, if it becomes clear that they are just another partisan, political organization. After all, “some animals are more equal than others” doesn’t resonate for a lot of their traditional base of support.

This issue hit home today because I just got a call from my agent saying that a major publisher will publish my middle-reader if I omit an “offensive” passage. Any sane person would simply say “sure,” but there is a principle involved here, and I haven’t decided whether this one is worth going to the mat for.

The narrator in the story is 11-year-old Ned who has just been sent to the principal’s office (yes, there’s a principal involved too) and is reflecting as the principal talks to Ned’s mother on the phone. Here’s the offending passage:

Now, my mom works at the ARC and she’s very busy because she has to find jobs for all these retarded people. That’s what ARC stands for—Association for Retarded Citizens. Except they call it the ARC because no one who works there is allowed to say “retarded” any more. They’re supposed to say “disabled.” I asked her once why they didn’t just call it the Association for Disabled Citizens and change the initials to ADC. She laughed and said, “Because that would make too much sense.” My mom is pretty cool, by the way.

So after she told me this, I looked up “retarded” and “disabled,” and—trust me—“retarded” is better. “Retarded” means you’re slow, so you might not get where you’re going very fast but you can still get there. “Disabled” means you’re not going anywhere. You’re out of commission, dead in the water, kaput. So which would you rather be? Duh! Any kid, even one who’s—you know—could figure this out. Hey, I’m not saying you should ever call anybody retarded, because it hurts people’s feelings, and that’s just wrong. But really—only grown-ups can come up with this kind of stuff!

I am, of course, aware that I was pushing the envelope with this, but the point—that “only grown-ups can come up with this kind of stuff”—seems to me a valid and even important one in this day and age. Am I crazy to want to keep this?

As I may have mentioned elsewhere, I had a relative who occasionally used the phrase, “a Chinaman’s Chance.” Perhaps its appeal was nominally alliterative, but the world view and message and effect is clear enough.

You are not crazy, I think you have done a good job of getting across how young people think. Dictionary definitions are not the only ones that count or are relevant. Young people often make this mistake and the passage you wrote illustrates this well.

But your publisher does have a point. Although your protagonist is correct that strictly speaking, “retarded” is a better descriptor than “disabled”, the former has been used as a pejorative for so long that it a slur to most people’s ears.

I can’t remember the last time I read something so perfectly written in a comments section. I don’t know if I ever have.

No reasonable person would say you were anywhere close to pushing the envelope with that passage. Pushing the envelope is what Brett Easton Ellis does. This is just a passage that uses some words that a select group of very sensitive and very serious people get upset about. If a passage like this becomes too offensive to be published, just imagine how many works of art — both from the past and in the future — will become too offensive for public consumption!

If you’re pushing the envelope, then so surely is rapper Young Dolph, whose elevated and ennobling lyrics (“Get Paid”) were imposed upon patrons (who had no say in the matter)recently at a Duke University student center coffee house. Quite the kerfuffle.

By the way, ‘disabled’ also seems to be regarded as a slur in PC circles. The ‘correct’ term is ‘differently abled’ which is not only a mouthful and an abuse of the English language (since when was ‘to able’ a verb? – it’s ‘enable’) but also makes no logical sense whatever.

The description on that page says it’s a story about a kid with “facial differences.” I found that hilarious when I first read it. It’s like saying a blind person is merely “occularly dissimilar,” or a homeless guy is “anomalously peripatetic.”

I would have thought that characters would be given a lot of (infinite?) leeway in what they say. In the movies, anyway, they rape and kill and torture and offend… and no one tells the author they’re being offensive — the character, who’s modeled on a real kind of person, did it.

That is a very good point but not entirely correct. In theory it should be the case that one can show ‘bad’ characters doing and saying bad things.

But movie producers have to be very careful what language is used or, for example, how much skin is visible, with an eye to the ratings. And these days it’s probably easier to get away with a ‘f*ck’ than it is to call a character a ‘n*gger’ or a ‘poof’. Even if it’s a bad character talking.

One of the problems with ‘hate speech’ is that it is defined by ‘hate listeners’, or, worse still, ‘hate listeners by proxy’.

Which means that just as you learn what words not to use when speaking about a particular group for fear of causing offence the ‘hate listeners’ define new words or groups to be the unquantified agents of offence.

Arguably the ‘hate speech’ finders have made an industry out of finding offence, and like all industries it needs more raw material all the time.

That’s what happens to all euphemisms. As soon as a word is recognised as identifying a particular group, and becomes universally used, it then acquires all the pejorative connotations that the previous word did so yet another even more absurd euphemism has to be invented.

It’s not just losing the biggest civil rights organization in the country to social justice offense-takers who want to curtail free speech that frightens me, because I’m just as concerned about what message this stance from the ACLU sends to the public. A lot of liberals look to the ACLU as an authority and a bellwether. If the ACLU pursues this path, it will very likely shift the Overton window among a significant portion of the population. This could have repercussions far beyond just losing one of the most respected and powerful lobbies when it comes to freedom of speech.

The “new logic” way of justifying this trend of banning “hate speech” is to insist that it can _lead_ to violence, and therefore is not protected by the 1st Amendment. Someone tried this against Dave Rubin in New Hampshire, suggesting that (for example) racial epithets could lead to violence against racial minorities.

Of course by this logic, virtually ANYthing could lead to violence, including completely anodyne statements. Is rooting for your favorite team while attending an away game a provocation? Is holding a sign asserting a woman’s control over her own body an incitement to bomb abortion clinics?

You can link anything to anything if you work hard enough. I think the threat of “immediate” or “imminent” violence needs to be interpreted strictly to avoid this slippery slope.

For the record I do not think ACLU should not defend “hate speech” since it is not well defined by the US law and court system.

Nor do I think that “[absolute f]ree speech is to a democracy as oxygen is to an animal” since EU has plenty of democracies – including those that work better than US in comparisons – regulating hate speech in law. But we have had that question before, i.e. if this regulating practice is useful or not. The idea (in Sweden) seems to be to support the UN convention on Human Rights [ https://sv.wikipedia.org/wiki/Hatbrott ]. Maybe not necessary as per above, but a worthy goal as stated.

The EU has them now, thanks largely to American power btw, and have had them since when exactly?

Jerry likes the current USSC approach, in which (contrary to what you say) the speech that is protected is actually pretty well defined. It includes what is often termed hate speech, and the difficulty of defining that subset is not an argument For exempting it from protection, quite the reverse. Joke is hard to define too, as is understatement; by your criterion the ACLU shouldn’t defend those either.

The Skokie march was the perfect proof that the answer to bad speech is more good speech.
Before the march, there was no American Holocaust Museum and none was likely. The march motivated people to get it built.
Is there anyone that would give up that Holocaust museum if only they could erase the Nazi march in Skokie?